Tag Archives: Skagit County Criminal Defense

Prosecutor’s Use of Term “Mexican Ounce” At Trial Was Race-Based Misconduct

Bellingham Defense Attorney, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Race & Law, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Mexican Ounce (Minus Tax) : r/heroin

 In  State v. Ibarra-Erives (9/19/2022), the WA Court of Appeals reversed the defendant’s drug conviction because the Prosecutor ‘s use of the term “Mexican ounce” at trial was an intentional appeal to jurors’ potential bias.

BACKGROUND FACTS

In June 2018, the Snohomish Regional Drug Task Force executed a search warrant to recover drugs and related evidence in an apartment. A detective persuaded Mr. Ibarra Erives to open the door. Officers then “pulled him out onto the front landing” and arrested him. On the kitchen counter, police found white powder later determined to be methamphetamine.

On the closet shelf in a bedroom, officers discovered a backpack. The backpack contained
seven one-ounce “bindles” of methamphetamine and five bindles of heroin. The backpack did not contain any information identifying its owner. On the shelf next to the backpack, police found a digital scale and a box of plastic sandwich bags.

Ibarra-Erives admitted that he “temporarily” lived at the apartment. He told police he sometimes slept on the couch and sometimes on the pile of blankets officers observed in bedroom where they found the backpack. Ibarra-Erives said the prescription medication and clothes found on the floor of the bedroom were his. But he denied owning the backpack.

When police searched Ibarra-Erives’ pockets, they found a broken glass pipe used for smoking methamphetamine that had white residue and burn marks on it. He also had $591 in cash in his wallet. The State charged Ibarra-Erives with unlawful possession of a controlled substance with intent to manufacture or deliver.

At trial, Ibarra-Erives, who is Latinx, used a Spanish interpreter. During the State’s case in chief, the prosecutor questioned the lead detective about the amount of drugs found in the backpack in room. The detective testified that each “bindle” of methamphetamine weighed 28 grams, or 1 ounce. He then described the bindles of heroin, which each weighed 24.6 grams. He explained that for heroin, “25 grams is considered an ounce.”

When asked why, the detective responded, “I don’t know what the answer is to why, but the term on the street is it’s a Mexican ounce across the board, regardless of who is selling or buying 25 grams of a Mexican ounce.” Then in his closing argument to the jury, the prosecutor twice emphasized that each bindle of heroin had been packaged as a “Mexican ounce.”

The jury convicted Ibarra-Erives as charged. He appealed his conviction on arguments that the prosecutor’s remarks suggested that a Latinx person likely packed or possessed the drugs.  He argues the prosecutor used this gratuitous reference to connect him to the drugs. Consequently, this terminology invoked stereotypes of Mexican drug-dealing and dishonesty against him.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reversed Ibarra-Erives’ conviction.

The Court reasoned that a prosecutor’s zealous pursuit of justice is not without boundaries. However, prosecutors have a duty to the defendant to uphold their right to a fair trial.

“Prosecutors commit misconduct when they use arguments designed to arouse the passions or prejudices of the jury . . . These kinds of arguments create a danger that the jury may convict for reasons other than the evidence produced at trial. In cases where race should be irrelevant, racial considerations, in particular, can affect a juror’s impartiality and must be removed. ~WA Court of Appeals.

The Court further reasoned that an objective observer could view the prosecutor’s references “Mexican ounce” to describe the way heroin was packaged for sale as an intentional appeal to the jury’s potential bias. The term specifically suggests that the defendant was more likely to have possessed drugs packed to a “Mexican ounce” because he speaks Spanish and appears to be Latinx.

“Testimony that heroin is packaged in an amount commonly sold on the street is probative of an intent to sell the drugs. But the street term attributing that practice to a particular racial or ethnic group is not. And when the defendant appears to be a member of that same racial or ethnic group, such comments improperly suggest that he is more likely to have packaged or possessed the drugs.” ~WA Court of Appeals

With that, the WA Court of Appeals reversed the conviction.

My opinion? Good decision.  The prosecution took advantage of despicable stereotypes. In the State’s closing argument at trial, the prosecutor used the term “Mexican ounce” two times. The prosecutor’s use of the term was an apparently intentional appeal to jurors’ potential bias. It improperly suggested that Mr. Ibarra-Erives was more likely to have possessed drugs packed to a “Mexican ounce” merely because he speaks Spanish and appeared to be Latinx.

Please contact my office if you, a friend or family member are charged with a drug offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prosecutor’s Filing Delay Held Unconstitutional

Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Solutions to the burden of backlog of cases - iPleaders

In State v. Stearns, the WA Court of Appeals held that the Prosecutor’s delay in filing charges violated the defendant’s due process rights.

FACTUAL BACKGROUND

In November 2020, a jury found Mr. Stearns guilty of felony murder in the first degree with sexual motivation. The charges arose from a 1988 incident where the victim’s body was discovered at a park.

In 2004, DNA evidence retrieved from the victim and scene connected Stearns to the incident. In 2005, law enforcement interviewed Mr. Stearns. The prosecutor assigned to the case later acknowledged that sufficient probable cause existed to charge Stearns with the murder. However, the proseutor did not file charges until 2017.

By then, multiple eyewitnesses interviewed by police in 1998 passed away during the delay between the State’s development of probable cause and charging. However, the trial court denied Stearns’s pretrial motion to dismiss based on preaccusatorial delay. In January 2020, a jury trial ultimately resulted in a hung jury. The court declared a mistrial.  The State retried Stearns in November 2020. This time, the jury found Stearns guilty as charged.

On appeal, Stearns argued that the lower court’s ruling on preaccusatorial delay deprived him of a fair trial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) said that  under State v. Maynard, a court will dismiss a prosecution for preaccusatorial delay if the State’s intentional or negligent delay violates a defendant’s due process rights.

Here, the filing delay actually prejudiced the defendant because a key eyewitness died months after the State filed charges and was unavailable for trial. Furthermore, the State’s reasons for the negligent filing delay were significantly outweighed by the actual prejudice to the defendant.  The prosecutor’s heavy caseload and the defendant’s lengthy incarceration on another case were not valid reasons for the late filing.

The Court of Appeals also reasoned the State violated the fundamental conceptions of justice by failing to file a murder charge with well-developed probable cause for 12 years. This late filing happened despite repeated status inquiries from other investigators and government actors involved in its investigation.

With that, the Court of Appeals reversed Stearn’s conviction and dismissed the case with prejudice.

Some legal insight is necessary. Pre-accusation delay motions (hereinafter “Due Process Motions”) are common among cold-case murders. For instance, investigators may not have enough evidence to legally effectuate an arrest at the time of the murder. The case goes “cold” until years later when DNA evidence links the original suspect to the murder. Due Process motions are brought to protect a criminal defendant for unfair delays which makes putting forth a defense impossible. To establish a due process violation a defendant must demonstrate prejudice. That is, the defendant must show that the pre-indictment delay impaired his or her ability to defend against the charge.

Please contact my office if you, a friend or family member are charged with a crime involving filing delays. Hiring an effective and competent defense attorney is the first and best step toward justice.

Indigenous Prisoners in Walla Walla Gather for Pow wow

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Prison, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

Powwow adds color to local prison - Mitchell Republic | News, weather, sports from Mitchell South Dakota

Journalist Karina Brown reports in Undersore News that Native American prisoners at the State Penitentiary hosted their first powwow in three years. This reunites a 50-year tradition temporarily halted by the Covid-19 Pandemic.

“Today is a big day, to be able to see our families,” said Yakama inmate Tallon Saluskin. “And to get to show love.”

Thirty-seven Indigenous inmates and 75 guests attended the first of 22 powwows scheduled for September and October in Washington state prisons. It was the first time the Washington State Department of Corrections (WDOC) allowed an outdoor powwow in a medium-security prison. There was drumming and dancing, plus a feast of salmon, buffalo stew and fry bread. Late in the afternoon, prisoners presented handmade gifts to nearly every attendee.

The lack of powwows, sweat lodges and other Native American religious ceremonies during the pandemic made a difficult time period even harder. That painful stretch of time without religious ceremonies ended sooner for prisoners who participated in other religions. But Native Americans are incarcerated in the United States at higher rates than any other racial category, after African Americans. Though they make up 1.9% of the population of Washington State, nearly 5% of the people jailed in state prisons in Washington are Native American.

Consequently, Covid restrictions in prison were especially detrimental to Indigenous faith practices.

Bringing Pow wows To Prisons Was Hard-Fought.

Restrictions under the pandemic caused an absence of ceremony comparable only to one other period of time at least 50 years ago.

In 2010, the WDOC sharply curtailed the Indigenous faith practices it allowed. At issue were budget cuts and a dispute over whether to allow children to attend powwows. But the religious rights of Indigenous prisoners are protected under the First Amendment, the American Indian Religious Freedom Act of 1978 and rulings from the U.S. Supreme Court including the 1979 case Bell v. Wolfish, which found that prisoners “do not forfeit all Constitutional protections by reason of their conviction and confinement in prison.”

Ten tribes petitioned the governor for a reversal of the 2010 policies, but it took over two years for the WDOC to restore Native prisoners’ religious rights.

My opinion? This tradition brings healing and strength. And society must recognize that the rehabilitation of inmates would be enhanced if their religious and cultural practices were permitted.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Mental Health & High-Potency Cannabis

Bellingham Defense Attorney, Drug Offenses, marijuana, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Dabs, Wax, Vaping Weed, Edibles and the Real Impact of High Potency THC Products: What Parents Need to Know

Journalist for the Seattle Times reports that research warns of the mental health risks of high-potency cannabis.

Such products are setting off alarm bells for physicians and a group of research scientists in the Pacific Northwest, who see the wide availability of dabs and other highly concentrated substances as a quiet but growing threat to public health, especially among young adults and teenagers. Lawmakers are considering new regulations, like a THC cap or higher tax on potent products. 

However, retailers and suppliers are pushing back. They point out that these products are already illegal for those under 21. And they warn that bans or increasing taxes on certain products could spur the growth of an illegal drug market.

Nevertheless, scientists point to emerging evidence from studies in adults that link high-potency THC to an increased risk of experiencing psychosis. Moreso, there’s a heightened risk of developing psychosis years earlier than would otherwise be expected in people at risk for the condition. Psychosis involves a loss of contact with reality, and symptoms can include delusions and hallucinations.

A large body of research links cannabis use in youths to psychotic symptoms. Anecdotally, pediatricians here report an increasing number of teenagers in emergency rooms with psychotic episodes. They’ve also experienced disorientation and severe vomiting, called cannabis hyperemesis syndrome. Whether such products should be further regulated — and how to do so — raises complex questions for policymakers.

So far, only Vermont and Connecticut included caps on high THC concentrations in their cannabis-legalization bills — both at 60% THC. California is considering legislation requiring cannabis producers to include a label warning of potential mental health consequences and other risks.

A majority of teens in the Northwest don’t use cannabis. But among those who do, they increasingly report use of dabs and other alternatives to smoking. According to Washington’s 2021 Healthy Youth Survey, about 33% of Washington 12th graders who use cannabis reported that they dabbed it. And in Oregon, the portion of youth who use cannabis and reported dabbing jumped from 26% to 36% from 2017-2019.

Pediatricians say they’re already witnessing what happens when youth with little or no THC tolerance try extremely potent products. Some wind up having a psychotic episode or experiencing temporary cognitive impairment, like trouble with simple motor tasks, finding words or remembering something they were just told. Others who’ve built up a tolerance to high-THC products seek help after severe bouts of vomiting, dehydration and stomach pain, symptoms of CHS.

“Are people really seeing this or are we just blowing smoke here? I’m totally seeing it. I see it at least three or four times a week,” ~Dr. Cora Breuner, Professor of Pediatrics at UW and a Physician at Seattle Children’s Hospital.

The question of how to address concentrates comes down to whether state regulations would embolden a more dangerous black market. Policymakers are weighing several options, including raising age limits or marketing restrictions on high-potency products, charging higher taxes, adding THC caps and launching more robust public health awareness campaigns.

Industry and consumer experts vigorously campaigned against Davis’ THC cap proposals and continue to argue that new restrictions will lead to worse public health outcomes as unregulated products may contain pesticides or dangerous additives.

“(Our) top priority is a safe and quality-controlled marketplace that works to keep products away from kids,” Vicki Christophersen, executive director and lobbyist for Washington CannaBusiness Association, which represents producers and retailers across the state, wrote to The Seattle Times. “A return to prohibition policies is a threat to an open, transparent sector and inadvertently supports the illicit market, which operates in the dark.”

Please contact my office if you, a friend or family member are charged with Drug Offenses or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

President Biden Pardons Those With Federal Convictions for Possessing Marijuana

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Why Joe Biden's Marijuana Move Is a Midterm 'No Brainer'

WASHINGTON – President Joe Biden announced that he is pardoning people with federal convictions for simple possession of marijuana. This is a historic move that could help more than 6,500 people. And it sends a powerful message on how such actions should be treated.

The vast majority of convictions occur at the state level. The president is urging governors to likewise pardon those offenders. More than 540,000 people were arrested for marijuana-related offenses in 2019 —primarily for state offenses, according to the FBI.

“Too many lives have been upended because of our failed approach to marijuana,” Biden said in a video announcement. “It’s time that we right these wrongs.”

Biden is also asking the departments of Justice, and Health and Human Services to review how marijuana should be scheduled under federal law. White House officials said the president is making the move to fulfill a campaign promise as efforts in Congress to address the issue have stalled.

“As I often said during my campaign for president, no one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit.” ~President Joe Biden

Biden said the “collateral consequences” of convictions for marijuana possession include being denied employment, housing, or educational opportunities. He also said Black and brown people have been arrested and convicted at disproportionate rates despite using marijuana at similar rates as white people.

The Justice Department will issue certificates of pardons to those eligible. That process will begin implementation “in coming days,” according to department spokesman Anthony Coley. The pardons will apply to those convicted under the District of Columbia’s drug laws, which covers “thousands” more people, according to the White House.

The president’s pardon also blocks future federal prosecutions for simple possession. Marijuana is a Schedule 1 substance under the Controlled Substances Act. The classification is meant for the most dangerous substances. It represents drugs with no currently accepted medical use and a high potential for abuse. Other Schedule 1 drugs include heroin and LSD, while fentanyl and methamphetamine are Schedule 2 substances.

Over the years, Congress has enacted dozens of mandatory minimum sentencing laws for all drug-related offenses that led to longer incarceration periods. Repeat offenders were subjected to compulsory sentence enhancements such as doubling up penalties, which vary by substance. Some have even faced mandatory life imprisonment without parole if convicted of a third serious offense, per various reports by the United States Sentencing Commission.

The Justice Department will work with the Department of Health and Human Services on a “scientific review” of marijuana’s classification. There is no deadline for that review.

Read the Proclamation:President Joe Biden’s proclamation on granting pardon for the offense of simple possession of marijuana

My opinion? Excellent move. The President made a significant step in addressing the systemic racism within the criminal justice system. And it’s progressive. Medical use of cannabis products is allowed in 37 states and the District of Columbia. It can be used recreationally in 19 states and the District of Columbia. It’s time we decriminalize it.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Can Community Court Work in Whatcom County?

Bellingham Defense Attorney, Community Court, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Community Court - St. Vincent de Paul

Great article by journalist Julia Lerner posed the question of whether a Community Court can become a viable service in Whatcom County.

THE NEED EXISTS & THE TIME IS RIGHT.

Ms. Lerner’s article emphasizes that Whatcom County’s criminal justice system is in turmoil: “Between the COVID-19 Pandemic, an aging jail, understaffed police departments, rising crime rates and shifting state legislation, the system is struggling to support the needs of the community,” writes Lerner.

And the time is right. Whatcom County’s upcoming judicial elections bring candidates offering their various positions on the sustainability of a local Community Court.

WHAT IS COMMUNITY COURT?

A community court is an alternative problem-solving court. It seeks to identify and address the underlying challenges of court participants that may contribute to further criminal activity. Its goal is to build stronger and safer neighborhoods and reduce recidivism.

The community court approach is designed to connect people charged with misdemeanors, including trespassing charges often levied against homeless individuals, with resources to help them access food, shelter and literacy programs. It calls for less jail time, more community service and a significant increase in local resources for those seeking mental health and addiction treatment and affordable housing.

Community courts provide services and accountability for those who are eligible and choose to participate. An assessment is conducted for all community court participants to identify their challenges and strengths. The assessment provides information to help determine what follow-up steps an individual community court participant will be required to take. Among other actions, participants often are required to perform community service.

Community court increases collaboration between the criminal justice system and other systems. They may help address mental health, substance use, human services, housing, employment and education.

My opinion? I’ve had many clients get their criminal charges dismissed via Community Court when that option is available. Community Courts follow a non-punitive, therapeautic model of criminal justice.  And it’s a great option for defendants who are committed to do the work. Community Courts reduce recidivism, increase safety and they build a stronger community.

That said, they require time, money and political will to be effective. A community resource center is an integral component of a successful community court. The resource center should includes on-site community partners that provide a wide array of services. People need access to healthcare/insurance, education, job training, behavioral health, substance use disorder help and more. By coming together in one place, many different community service agencies are better able to collaborate. Resource centers should be made available to all members of the public in addition to the community court participants.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Crime Lab Delays Get Criminal Conviction Reversed & Case Dismissed.

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Speedy Trial & Continuances, Whatcom County Criminal Defense, , , , ,

What Does It Mean to Have the Right to a Speedy Trial? - Law Office of Michael L. Fell

In State v. Denton, the WA Court of Appeals reversed the defendant’s criminal convictions and dismissed his case because the trial court wrongully granted continuances solely based on routine crime lab delays processing DNA results.

FACTUAL BACKGROUND

The victim Mrs. Denton divorced the defendant, Bradley Denton, in 2012. The couple later reconciled but Mr. Denton resumed using drugs. Mrs. Denton ended the relationship for good after about a year.

When Mr. Denton persisted in contacting her, Mrs. Denton obtained an order for protection against him. That fall, Mrs. Denton, who had moved to Tumwater, returned to Yakima for a family gathering. Mr. Denton was aware she was in town. On the morning after the family gathering, Mr. Denton arrived uninvited at the home where Mrs. Denton and other family members were staying.

A sexual assault allegedly occurred. Mrs. Denton reported the assault to the Tumwater Police Department. An officer took a recorded statement, arranged for her to undergo a sexual assault examination. Police picked up the clothing had been wearing when assaulted. They referred the matter to the Yakima Police Department.

About a week later, Mr. Denton, who had been arrested for unrelated reasons and was incarcerated in the Yakima County Jail, placed a phone call to Felicia. Mrs. Denton did not accept the first call. However, after speaking with police, she accepted three calls from Mr. Denton.

On October 26, Mr. Denton was charged with assault in violation of a protection order, second degree rape, and two counts of misdemeanor violation of a protection order. All were charged as domestic violence offenses.

Mr. Denton was held in jail for 15 months during the pendency of his case. Over his objections, the trial court granted two continuances. The continuances extended Denton’s trial date four and a half months beyond period provided by CrR 3.3. The judge granted the continuances because the Prosecutor said that a nine-month turnaround by the crime lab was to be expected.

The jury found Mr. Denton guilty of all charges. He appealed his conviction on arguments that the 15-month delay between his arraignment and trial violated his speedy-trial rights under CrR 3.3.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals held that the trial court abused its discretion by granting continuances based on evidence of routine administrative delay by the WA State Patrol Crime Lab.

The Court reasoned that CrR 3.3(b)(1) requires a defendant who is detained in jail to be brought to trial within 60 days of arraignment. Mr. Denton was detained in jail, so the 60-day limit applies, reasoned the Court.

“The purpose underlying CrR 3.3 is to protect a defendant’s constitutional right to
a speedy trial,“ said the Court. “Past experience has shown that unless a strict rule is
applied, the right to a speedy trial as well as the integrity of the judicial process, cannot
be effectively preserved.”

Furthermore, the Court reasoned that the fact that DNA evidence may prove exculpatory is not a basis for continuing the time for trial over a defendant’s objection. It emphasized that the State’s requests for continuances must be supported by a better record.

Finally, the Court reasoned that dismissal is required:

“Presented with a record in which the sole basis for the two continuances was routine crime lab delay, we are left with no choice but to reverse Mr. Denton’s convictions and direct the superior court to dismiss the charges with prejudice. We deplore this outcome given the violent nature of Mr. Denton’s crimes, but it is the strict remedy that drafters of the rule perceived as needed to ensure that criminal cases will be promptly prepared for trial and heard.” ~WA Court of Appeals.

With that, the Court of Appeals reversed Mr. Denton’s conviction and dismissed the case with prejudice. The case emphasized that if a convicted defendant can establish a violation of the constitutional right to a speedy trial, the court must set aside the conviction, vacate the sentence, and dismiss the charging document.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

The Limits of Expert Witness Testimony

Bellingham Defense Attorney, Diminished Capacity, Expert Testimony, felony, Hearsay, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Caril, the WA Court of Appeals held that a lower trial court did not violate the defendant’s Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

BACKGROUND FACTS

Mr. Caril was convicted of second degree murder. He asserts he was in a state of compromised mental health when he stabbed and killed a person.

During the night of June 22-23, 2017, Mr. Ross, Ms. Nguyen, and Mr. Pimenthal enjoyed a night out with a group of friends. In the early morning hours, they obtained take-out meals and sat on the curb outside the restaurant to eat. From across the street, an individual shouted, “Shut the fuck up,” and threw a two-liter soda bottle in their direction. It landed by their feet. Ross shouted back that throwing the bottle was a “good way to get your ass kicked.”

Ross observed the individual – later identified as the defendant Mr. Caril – walk across the street. He walked towards the group brandishing a knife. Ross told everyone to “run” and that the approaching individual had a knife. Nguyen and Ross withdrew. Unfortunately, Pimenthal was not able to do so in time. While running away, Ross saw Caril stab Pimenthal. Nguyen saw Caril “punch” Pimenthal three times in the chest. Mr. Hussen, who observed these events from his car nearby, exited his vehicle and shouted at Caril. Hussen asked if Carilwas “crazy” and “why” he stabbed Pimenthal. Caril asked Hussen if he “wanted some too.” Pimenthal died from his injuries.

Caril was charged with first degree murder. He was later charged with an additional count of second degree murder.

At trial, Caril, who suffers from paranoid schizophrenia, called an expert psychologist. The expert testified that Caril lacked the capacity to form criminal intent at the time of the incident. The trial court allowed this testimony. However, the trial judge prohibited Caril’s expert witness from testifying to hearsay statements from another psychologist’s report that the expert relied on. The court reasoned that the excluded statements concerned the collateral issues of Caril’s competency to stand trial and potential future need for civil commitment.

Caril was acquitted of first degree murder, but the jury found him guilty of the lesser included crime of second degree murder (intentional murder) with a deadly weapon. Caril was found guilty of second degree murder (felony murder) with a deadly weapon on count II.

On appeal, Caril argued the trial judge abused his discretion and violated his Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

COURT’S ANALYSIS & CONCLUSIONS

The Court Appeals said that under the Sixth Amendment, a defendant has a constitutional right to present a defense. This right is not, however, absolute. It may bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible.

Furthermore, an expert witness is permitted to base an opinion on facts or data that are not admissible in evidence. Ths can happen under ER 703 if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Consequently, the trial court has discretion to determine the extent to which the expert may convey this information.

Here, the Court of Appeals reasoned that the hearsay statements were relevant to explain the basis for the expert’s opinion. However, it further reasoned that admitting them could confuse or mislead the jury. This was because the hearsay statements concerned collateral issues related to the defendant’s competency to stand trial and potential future need for civil commitment.  Moreover, the probative value of the statements was low. They were inadmissible as substantive evidence and relevant only for the purpose of providing additional context for the expert’s opinion.

Please contact my office if you, a friend or family member are charged with Homicide, Manslaughter or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Why Aren’t Collector License Plate Infractions Enforced?

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Are drivers getting a sweet deal with Nevada's classic vehicle license plates? | KRNV

Why don’t police strictly enforce Collector License Plate infractions? Is this a no-priority enforcement situation? Doug Dahl of Target Zero gives answers in a recent news article.

Under Washington law, collector vehicle license plates cannot be used for regular transportation, commercial purpose or carrying a load. The law allows vehicles that are at least 30 years old and in good running condition to be licensed as collector vehicles. The upside of registering your car as a classic is that collector vehicle plates are valid for the life of the vehicle. You never have to pay for your tabs again.

The tradeoff is that a collector vehicle has limitations. The law states that they “may only be used for participation in club activities, exhibitions, tours, parades, and occasional pleasure driving.”

You might think lots of people would be tempted to register their cars as collectible, but time and wear makes this a somewhat self-enforcing law. Your old college car is most likely no longer on the road. The few cars that last that long usually do because they’re actually worth keeping.

I’ve asked a lot of cops why they got into the job, and so far none of them have said it was because they wanted to collect taxes. That doesn’t mean there’s no enforcement of registration laws, but it’s understandably less than some other violations. As far as I know, misuse of a collector plate has never been listed as contributing to a traffic collision.

“Given the limited policing resources, it makes sense to focus enforcement efforts on the highest-risk behaviors. No one likes getting a speeding ticket, but the most current research confirms that traffic enforcement that targets dangerous behaviors does save lives. There are laws we want enforced because it annoys us that someone is getting away with something, and there are laws we want enforced to intervene in high-risk driving behaviors. I know what I’d pick.” ~Doug Dahl, a Target Zero Manager Communications Lead,

Mr Dahl lists the top four factors in fatal crashes in our state along with the percentage of crashes they’re involved in:

▪Impairment (56%).

▪Speeding (31%).

▪No Seat Belt Use (23%).

▪Distracted Driving (20%).

Dahl adds that while enforcement decisions shouldn’t be made based on what’s easiest, in this case it works. Impairment, speed, distraction and seat belt use are all clearly observable behaviors. However, if an officer sees a collector plate at a grocery store or campground, who’s to say that isn’t occasional pleasure use?

Please contact my office if you, a friend or family member are charged with DUI or any other vehicular crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

When Rap Lyrics Are Used Against You In Court.

Bellingham Defense Attorney, ER 401, ER 402, ER 403, ER 404(B), Evidence, Harassment, Legislation, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Why Are Rap Lyrics Being Used As Evidence in Court?

Journalist Sam Levins reports that California could soon limit the admissibility of rap lyric evidence at trial.

Last week, California lawmakers passed new regulations meant to restrict such use of rap lyrics as evidence in criminal court, the first-of-its-kind legislation expected to become law in the US. Experts say that although the impact of the new policy will be narrow, it is a step forward in putting guardrails on a prosecutorial practice that all too often has worked to criminalize the artistic expression of young Black and Latino men.

THE HISTORY BEHIND ADMITTING RAP LYRICS AS EVIDENCE AT TRIAL.

According to the article, more than 500 reported cases of prosecutors using rap music as evidence against defendants. The practice started to surge in the 2000s, when authorities began to rely on social media in cases against amateur rappers.

The lyrics are typically cited to suggest “gang affiliation”, proof of crimes and intent, or demonstrate a rapper’s “violent” character or threats. The strategy was used against famous artists like Snoop Dogg in the 1990s, Drakeo the Ruler in 2018 and Tekashi 6ix9ine in 2019.

Professor Jack Lerner, a University of California, Irvine Law School professor, is an expert on the subject. He says the tactic is used across the nation. Apparently, the American Prosecutors Research Institute released a 2004 manual encouraging the use of lyrics in search warrants and trials.

RAP MUSIC ON TRIAL.

Although there are rare cases where words or music videos may be linked to specific criminal offenses, experts say research shows their use in court has often worked to prejudice jurors against young men of color.

Multiple studies have found that associating defendants with rap music creates a strong negative bias in jurors. People are significantly more likely to perceive lyrics as violent, offensive, dangerous and literal if they are from rap, compared to other genres.

Researchers have also found widespread examples of prosecutors taking lyrics out of context, presenting them in inaccurate and misleading ways, treating fictional lines as facts or confessions and using music to expand charges and secure convictions and lengthy sentences.

“Prosecutors talk to each other and see this is a very effective tactic, and that it’s unlikely to be reversed on appeal. So why wouldn’t you do this if your goal is to lock people up, whether they’re guilty or not?” ~Dr. Erik Nielson, University of Richmond Professor

CALIFORNIA’S PROPOSED LAW BANNING THE ADMISSION OF RAP LYRIC EVIDENCE AT TRIAL.

The new California law places limits on when prosecutors can cite defendants’ “creative expression” in court. It applies to all genres of music, dance, film and other art forms, though the law acknowledges that using rap lyrics in particular creates a substantial risk of prejudice. Reggie Jones-Sawyer is the California state representative behind the bill.

The law requires judges to hold a hearing without the jury present to consider the admissibility of the evidence and whether it would “inject racial bias into the proceedings”.

A pending bill in New York introduced earlier this year would prohibit rap lyrics unless there was “convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case”.

Federal lawmakers have introduced legislation similar to California’s bill, and the Recording Academy and major labels have backed the reforms.

WASHINGTON LAW ON CHARACTER EVIDENCE.

Under Evidence Rule 404, evidence of any other crime, wrong, or act is generally not admissible as character evidence. However, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  Judges typically apply a balancing test  to determine whether character evidence is relevant, probative or prejudicial.

My opinion? Let’s hope California’s legislation passes. This is a viable way to stop overzealous prosecutors from using creative expression, which should never be prohibited.

Please contact my office if you, a friend or family member are charged with Harassment or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.